City of St. Joseph v. Ernst

• Decision Date: 04 June 1888
• Citation: 8 S.W. 558,95 Mo. 360
• Parties: City of St Joseph v. Ernst, Appellant
• Court: Missouri Supreme Court

8 S.W. 558

95 Mo. 360

City of St Joseph v. Ernst, Appellant

Supreme Court of Missouri

June 4, 1888

Appeal from Buchanan Criminal Court. -- Hon. Silas Woodson, Judge.

Affirmed.

B. R Vineyard for appellant.

(1) The general statutes of this state (R. S., secs. 6060, 6061 6062), making provision for the taxation of the amount of business done annually by foreign insurance companies, do not violate the constitution of the state (art. 10, sec. 4) requiring all property to be taxed in proportion to its value. The tax is not on property, but on the amount of premiums received for the privilege of doing business. Glasgow v. Rowse, 43 Mo. 489, 490-1; Express Co. v. St. Joseph, 66 Mo. 680, 681. (2) Nor do these sections violate the federal constitution (art. 4, sec. 2), securing to the citizens of each state all the privileges and immunities of citizens in the several states, in imposing a heavier burden on foreign than domestic companies. The case of State v. North, 27 Mo. 464, does not apply in a case of this kind. See State v. Welton, 55 Mo. 288. A corporation is not a "citizen" within the meaning of this clause of the national constitution. Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410. (3) The constitution of Missouri (art. 10, secs. 3, 4) amounts to a prohibition against double or duplicate taxation. Burke v. Badlam, 57 Cal. 594; Life Association v. Board, 49 Mo. 513; State v. Railroad, 75 Mo. 212. (4) Municipal corporations "have no powers except such as are expressly granted in the charters, and as are auxiliary or necessary to the proper exercise of the powers conferred; and all statutes or charters creating corporations are to be strictly construed." Ruggles v. Collier, 43 Mo. 375; City v. Clemens, 43 Mo. 404; City v. Thompson, 19 Mo.App. 523; Thompson v. Schermerhorn, 6 N.Y. 92; Saline County v. Wilson, 61 Mo. 239; City v. Traeger, 25 Minn. 252; Dunham v. Trustees, 5 Cow. 462; 1 Dillon on Mun. Corp. [3 Ed.] sec. 89. (5) A right to impose double taxation will not be presumed. The power must be conferred by express statute, as, in the absence of such express authority, "it is a fundamental maxim in taxation that the same property shall not be subject to a double tax payable by the same party, either directly or indirectly." Cooley on Tax. [2 Ed.] 227; City v. Traeger, 25 Minn. 252; State v. Collector, 37 N. J. Law, 258; Livingston v. Paducah, 80 Ky. 656; Osborn v. Railroad, 40 Conn. 491; Iron Co. v. Danvers, 10 Mass. 514; Bank v. Portsmouth, 52 N.H. 17; Kimball v. Milford, 54 N.H. 406; Bank v. Savannah, Dudley, 130; Baltimore v. Baltimore, 6 Gill, 288; Provident Inst v. Gardiner, 4 R. I. 484. (6) And the law will be so construed, if possible, as to avoid duplicate taxation, though there may be general words in the law which would seem to imply that the subject of the tax might be taxed a second time. Commissioners v. Bank, 23 Minn. 280; Bank v. Nashua, 46 N.H. 389-98; Smith v. Exeter, 37 N.H. 556; Kimball v. Milford, 54 N.H. 406; State v. Sterling, 20 Md. 502; Bank v. Rutland, 52 Vt. 469; Railroad v. Shacklett, 30 Mo. 550, 560; State v. Railroad, 37 Mo. 265, 267-8; Burke v. Badlam, 57 Cal. 594; Gordon v. Baltimore, 5 Gill, 231; Bank v. Mumford, 4 R. I. 478. And the power "to license, tax, and regulate, * * * insurance companies," as provided for in plaintiff's charter as a city of the second class (R. S., sec. 4644, subdiv. 15, p. 919), must be so construed in connection with sections 6060, 6061, and 6062, both being parts of the same general statute law of the state, as to avoid duplicate taxation. (7) The statutes of Missouri (secs. 6060, 6061, 6062) provide for a uniform rule and mode for taxing the amount of business done by all insurance companies not organized under the laws of this state, for county, municipal, and school purposes, and also (as amended by Acts 1887, p. 199) for township purposes. Having provided this mode for taxing the amount of the income of foreign insurance companies for the privilege of doing business, it became the only way of reaching the particular subject of taxation covered by those sections. Expressio unius, exclusio est alterius. St. Charles v. Nolle, 51 Mo. 124; State v. Bittinger, 55 Mo. 596; Lindell v. Railroad, 36 Mo. 543; Cunningham v. Railroad, 61 Mo. 33; Railroad v. Campbell, 62 Mo. 585; Coates v. Acheson, 20 Mo.App. 255; Maguire v. Association, 62 Mo. 346; Mathews v. Skinker, 62 Mo. 334; Ex parte Snyder, 64 Mo. 61; Dyer v. Bannock, 2 Mo.App. 446. (8) The taxation of the amount of the net annual premiums of foreign insurance companies, as provided for in sections 6060, 6061, and 6062 of the statutes of this state, is a tax upon the net income of such companies for the privilege of doing business. It is in no sense a tax on property. Dubuque v. Ins. Co., 29 Ia. 9; Ins. Co. v. Commonwealth, 133 Mass. 161; Ins. Co. v. Commonwealth, 98 Pa. St. 49; Glasgow v. Rowse, 43 Mo. 489, 490-1; Exp. Co. v. St. Joseph, 66 Mo. 680-1. (9) "The uniform course of decisions is, that a right to license an employment does not imply the right to charge a license fee therefor with a view to revenue, unless such seems to be the manifest purpose of the power; but the authority of the corporation will be limited to such a charge for the license as will cover the necessary expenses of issuing it, and the additional labor of the offices and expenses thereby imposed. A license is issued under the police power, but the exaction of a license fee with a view to revenue would be an exercise of the power of taxation." City v. Ins. Co., 47 Mo. 152-3; Glasgow v. Rowse, 43 Mo. 490; Railroad v. Hoboken, 41 N. J. Law, 71; City v. Spiegel, 75 Mo. 145; Burlington v. Ins. Co., 31 Ia. 102; City v. Traeger, 25 Minn. 248; New York v. Railroad, 32 N.Y. 261; In re Wan Yin, 22 F. 701; State v. Blaser, 36 La. Ann. 363; Fort Smith v. Ayres, 43 Ark. 82; Collins v. Louisville, 2 B. Mon. 134. (10) Where the charter of a municipality or an ordinance passed pursuant thereto, provides a particular mode for the exercise of a power, it cannot be exercised in any other way. Thompson v. City, 61 Mo. 282; City v. Clemens, 43 Mo. 395. And this is especially true in its application to the exercise of the power of taxation. 2 Dillon on Mun. Corp. [3 Ed.] sec. 769; Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316; Dubuque v. Ins. Co., 29 Iowa 9. (11) The delegation of a power to a municipal corporation is to be construed with strictness, where taxes on occupations are sought to be imposed, and "it should be done in clear and unambiguous terms," or else it will not be found to exist. City v. Laughlin, 49 Mo. 562; Kip v. Patterson, 26 N. J. Law, 298; Dubuque v. Ins. Co., 29 Ia. 9; Charleston v. Oliver, 16 S.C. 47; Exp. Co. v. St. Joseph, 66 Mo. 680; City v. Traeger, 25 Minn. 252; Dunham v. Trustees, 5 Cow. 462.

Ryan & Macdonald for respondent.

(1) The state has full power over the subject of taxation and can delegate that power and authority to municipal corporations. City v. Sternberg, 69 Mo. 289; City v. Ins. Co., 47 Mo. 150; Glasgow v. Rowse, 43 Mo. 489, 490. (2) By the provisions of section 4644, Revised Statutes of Missouri, the legislature has conferred upon respondent the authority by ordinance "to license, tax and regulate * * * insurance companies," whether such insurance companies be foreign or home organizations. (3) The word "tax" used in paragraph 15 in connection with, and in addition to, the words "license and regulate," shows a manifest intention upon the part of the state to delegate to respondent the right and authority to impose a license tax for revenue upon the trades, businesses, and avocations named therein, and such license tax is legal and valid. City v. Ins. Co., supra; City v. Bank, 49 Mo. 576; City v. Life Ass'n, 53 Mo. 466; Express Co. v. City, 66 Mo. 680; City v. Sternberg, 4 Mo.App. 454; City v. Green, 7 Mo.App. 467, et seq.; City v. Bircher, 7 Mo.App. 170. (4) A license tax upon the occupation, avocation, or business may be levied where an ad-valorem tax upon the property has already been levied, and such tax is legal. Authorities supra. (5) Even as a charge for issuing a license this court cannot determine that fifty dollars is unreasonable, inasmuch as that is a matter vested in the discretion of the licensing power, and one over which the court will not exercise control. Authorities supra.

OPINION

Black, J.

The plaintiff is a city of the second class, under the general laws of this state. By an ordinance, duly enacted, it is provided that no person or corporation shall carry on any kind of insurance business in the city, in person or by agent, without a license for such purpose. The amount required to be paid for a license for one year is fifty dollars. The same ordinance makes it unlawful for any person to act as agent for any company, not having paid the license. The offender is declared to be guilty of a misdemeanor, and upon conviction to be fined not less than one hundred dollars. The Fireman's Fund Insurance Company is a corporation duly organized under the laws of the state of California, and for many years has transacted business in the city of St. Joseph. The insurance company neglected and refused to pay the license required by the ordinance, and notwithstanding this neglect and refusal, the defendant, in November, 1887, solicited business for, and acted as the agent of, the company. For this violation of the ordinance he was fined in the recorder's court. On appeal to the criminal court, he was again fined in a like amount, and he appealed to this court, and insists that the ordinance is void for want of authority in the city to enact it.

As the case stands here, it must be taken that the city collects the amount charged for the license for revenue purposes. The issuing...